South Dakota Government Blog by Bob Mercer

Monthly Archives: December 2014

I don’t know the scientific term for what I saw today, both morning and evening, but they were beautiful. Driving from Pierre east on SD 34, the morning sun low in the southeast sky had bright full rainbow patches on each side. I presume they were created by light moving through ice crystals. (The Missouri River also was beautiful with fog rising from it.). For quite a while I drove straight into the northern one of the rainbow patches. Returning from Madison to Pierre this evening, I was treated a second time to the bright full rainbow patches on each side of what now was the setting sun in the southwest sky. They weren’t quite as vibrant and didn’t last quite as long, but they were visible for minutes on end. They weren’t the bright spots that appear as false suns. And unlike a normal rainbow, they could be seen while looking at the sun. No, I didn’t take photos. I did take them as a good sign. Lucky charms, perhaps.

The South Dakota Supreme Court ruled against a driver whose lawyer in her DUI case argued that one state law nullified another state law. The decision delivered by the court in State v. Nicole Mundy-Geidd reinforces an important standard regarding legislative intent and legislative history of a law. The justices looked at 2012 laws and subsequent 2013 laws to determine the Legislature didn’t intend in 2012 to prohibit DUI prosecutions. The court also ruled that other state laws prohibiting alcohol use in certain situations weren’t repealed by implication in 2012. “But without an express repealer, it is unreasonable and absurd to believe that the 2012 Legislature intended such a wholesale repeal of these important public safety statutes,” Justice Steven Zinter wrote for the unanimous court.

The decision by Shannon County voters to change their jurisdiction’s name to Oglala Lakota County was 2,196 yes and 531 no back on Nov. 4. Since then, some news stories and some blog posts have portrayed the issue as a question next for the Legislature. I haven’t covered such an occasion before, although South Dakota has seen plenty of names changes and consolidations for counties. Reading the state laws about county name changes, I don’t see that the governor and the Legislature have any choice but to respect the wishes of the county’s voters. Here are the key statutes:

7-1-71. Legislative resolution to change name. The Governor at the next convention of the annual session of the State Legislature shall communicate the result of an election held pursuant to § 7-1-69 in such county to the presiding officer of each branch of the Legislature, and thereupon the Legislature shall designate by joint resolution the new name of such county.
Source: SL 1992, ch 51, § 3.

7-1-72. Governor’s proclamation of new county name. Upon the designation made by the Legislature pursuant to § 7-1-71, the Governor shall publicly proclaim the result of the election held pursuant to § 7-1-69 and of the new name of the county. The new name of such county shall be in full force and effect on the first day of the month following such proclamation by the Governor.Source: SL 1992, ch 51, § 4.

Maybe my reading of the laws is wrong, but the word “shall” appears three times. The governor “shall communicate” the election results to the Legislature. The Legislature “shall designate” by joint resolution the new name. And the governor “shall publicly proclaim” the result of the election and the new name. If a governor or the Legislature refused, my guess is that a person could go to circuit court and seek an order forcing the governor or the Legislature to fulfill the duty assigned to it by state law. Of course, the Legislature could try to change the law, but there are prohibitions in the South Dakota Constitution against the Legislature passing special or private laws interfering in those types of county affairs. The change of Shannon County to Oglala Lakota County looks like it was a done deal when the Nov. 4 voting results became official.

Other than our daughter being off in Colorado, this was one of the best Christmas Days I’ve ever had. Our son was home. Our friends made a great Christmas Eve meal and I had my first stuffed pork loin. Today at our house we had a wonderfully sweet ham and real mashed potatoes and green beans with bacon and hot cornbread, preceded by lots of fun opening gifts.

The Republican National Committee selected Cleveland as the host for its 2016 convention where the party’s presidential nominee will be chosen. Party officials want the convention held earlier than in past elections. That would mean some states that hold their primaries and caucuses in May and June might need to adjust their dates for their Republican presidential contests. This issue awaits South Dakota, specifically Secretary of State-elect Shantel Krebs, a Republican, and the Republican super-majorities in the Legislature. South Dakota held its 2014 primary elections on June 3. It also would affect the South Dakota Republican Party, whose leaders held their 2014 convention in Rapid City on June 19-21. Looking ahead to 2016, the normal first Tuesday of June comes on June 7. At the national level, Republicans discussed holding their 2016 national convention either June 27-30 or July 18-21. (If they have picked a final date, I don’t find it on the RNC website.) One further complication is whether Cleveland might be the host of the National Basketball Association finals in June 2016, a possibility now that the Cavaliers are among the NBA’s strongest teams with the signings of LeBron James and Kevin Love this year. Getting ready for the convention could take six weeks for site preparation, according to some accounts. South Dakota held special presidential primaries separate from the traditional June primaries for a few election cycles but the February contests were discontinued because of the additional costs and the low turnouts. Whatever the solution might be, the Legislature will need to act during the 2015 session that opens Jan. 13, because the election laws need to be in place for 2016 starting on July 1, 2015. The options seem to be a caucus system similar to Iowa, where the political parties and in reality the candidates bear the direct costs; a return to an early separate set of presidential primaries; or a complete move of South Dakota’s primaries, a change that would require rewriting the dates throughout the state elections code. This could be the surprise issue of the 2015 session. So far no one is talking much about it.

Kelly Hepler, who grew up in South Dakota, will move from the Alaska Department of Fish and Game to be the new secretary for game, fish and parks in South Dakota. The governor’s office announced the appointment this morning in a news release that includes a photo. He will replace Jeff Vonk, who is retiring. Hepler was appointed as assistant commissioner, the No. 3 post, for the Alaska department in 2010. Here is an excerpt from the Alaska press release announcing that appointment four years ago:

Kelly Hepler’s career with the department is long and distinguished. He began working at ADF&G in 1979 as a fisheries biologist and has held increasingly complex positions throughout his career. Kelly served as director of the Division of Sport Fish and most recently as a special assistant for the previous commissioner. He represents the department in numerous national forums and is presently chair of the National Fish Habitat Board. Kelly is a seasoned budget manager and has strong team and administrative skills that enable him to be a sound policy advisor. Kelly holds a B.S. in Fish and Wildlife Management from Montana State University.

This selection looks like another in a series of capable leaders for the department dating back to Vonk and his predecessor, John Cooper, who was a U.S. Fish and Wildlife Service agent prior to his appointment. Cooper currently is chairman of the South Dakota Game, Fish and Parks Commission. This decision to select Kelly Hepler came fairly fast. Just two weeks ago, interviews were still underway. For Gov. Dennis Daugaard, as he starts his second term in January, there is one Cabinet vacancy remaining: A successor to Doneen Hollingsworth as health secretary, whose retirement took effect earlier this month.

As of tonight, December 22, 2014, he no longer will work for the Aberdeen American News. Jeff Bahr was an ace at community reporting for 18 years in Aberdeen. Now he is taking his talents, and they are many, to Grand Island, Nebraska, where he’ll work at the Independent. I sent an email to Jeff’s address at AAN this afternoon. The auto-reply began, “Please contact someone else at American News” and then proceeded to give three addresses for entertainment, faith and “everything else”. Jeff proved an old newspaperman could learn new tricks. He became a master of Twitter. I scrolled back through the tweets in his account this afternoon and didn’t need long to realize why I came to appreciate him so. On Dec. 18, Jeff tweeted: “The three best foods on earth: 1. Doughnuts. 2.Cheesecake. 3. Qdoba’s Queso dip.” We don’t have a Qdoba in Pierre, so I take him at his word on the cheese dip. As for the doughnuts, well, I get through Grand Island every so often. He’s going to have to show me around. My guess is we’re a couple of guys who know where a lot of the bakeries are across our respective parts of the Great Plains — and know the bakeries’ specialties too. Is there anything better, really, than a fresh paper and a fresh donut? Only the best, Jeff, for one of the best.

The state Game, Fish and Parks Department has a small dilemma at Mobridge, where some property owners are mowing an adjacent strip of GFP land overlooking the Missouri River and in some instances, to varying degrees, treating the state property as an extension of their lots. One of the adjacent landowners said this week that GFP plans to issue mowing permits. But there is a problem: GFP doesn’t have an official rule providing permits for mowing of its land in such instances. When contacted about it, Doug Hofer, director for the state Parks and Recreation Division, said the current plan is to approach the Game, Fish and Parks Commission about creating such a rule early in 2015. There would need to be an official proposal by the commission at one of its monthly public meetings, followed by a public hearing at the next month’s meeting and an official vote thereafter. The public also would be allowed to send written comments to the commission during the one-month period after a rule is proposed. The GFP land in question was received from the U.S. Army Corps of Engineers as part of the 1990s-era transfers of Missouri River shoreline to the state of South Dakota and several tribal governments that was arranged by then-U.S. Sen. Tom Daschle and then-Gov. Bill Janklow.

Another crude-oil pipeline, this one carrying exclusively production from the Bakken and Three Forks formations, is proposed to cross South Dakota. The plans and permit application, filed with the state Public Utilities Commission, can be seen here. The line is called Dakota Access and would be 1,134 miles long from northwestern North Dakota to Patoka, Illinois. The segment through South Dakota would cover 271.6 miles. It would enter through Campbell County and cross McPherson, Edmunds, Faulk, Spink, Beadle, Kingsbury, Miner, Lake, McCook, Minnehaha, Turner and Lincoln counties en route to Iowa. There would be one pumping station seven miles south of Redfield for the South Dakota segment. It would carry 450,000 barrels per day and could handle up to 570,000. The company is based in Houston, Texas. The estimated total cost is $3.8 billion with the South Dakota segment costing $820 million. Dakota Access wants to start construction in 2015 once state, federal and local permits have been obtained. The timetable calls for commissioning the pipeline in August 2016 with service starting October 2016. The company plans to hire 12 full-time permanent employees in South Dakota. During the peak of construction in 2016, the company expects two spreads of 724 workers apiece.

TAX UPDATE: The company estimates the project will pay approximately $36 million in various state taxes during the construction period and approximately $3 million in local taxes. The first full year of operation will generate about $14 million in property taxes to local governments, according to the company.

U.S. Sen.-elect Mike Rounds, a Republican who will be serving in a new Republican majority in the U.S. Senate come January, received his four committee assignments Monday. They are Armed Services; Veterans Affairs; Environment and Public Works; and Banking, Housing and Urban Affairs.

U.S. Sen. Tim Johnson, a Democrat in a current Democratic majority, is retiring from the seat Rounds will fill. Johnson is departing as committee chairman of Banking, Housing and Urban Affairs. He also serves on three other committees: Energy and Natural Resources; Appropriations; and Indian Affairs.

U.S. Sen. John Thune, a Republican, is in line to become committee chairman for Commerce, Science and Transportation. He currently is the senior Republican member. Thune also will be returning to the committees on Finance; and Agriculture, Nutrition and Forestry.

U.S. Rep. Kristi Noem, a Republican who is South Dakota’s one member in the U.S. House of Representatives where a Republican majority has been re-elected, serves on two House committees. They are Armed Services and Agriculture.

It will be worth watching to see how Sen.-elect Rounds takes positions on the banking committee in comparison to where Sen. Johnson stood. It also will be important to see which of South Dakota’s three congressional members takes up Indian affairs matters without a seat on that committee and with nine tribal governments in South Dakota. It is also noteworthy that South Dakota has members in both chambers on the agriculture and armed services panels.